Lopez v. Home Depot U.S.A., Inc., CV-00-0419-PHX-ROS (D. Ariz. 2/5/2001)

• Decision Date: 05 February 2001
• Docket Number: CV-00-0419-PHX-ROS.
• Parties: Debra Lopez, Plaintiff, v. Home Depot U.S.A., Inc., a foreign corporation, Defendant.
• Court: U.S. District Court — District of Arizona

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Debra Lopez, Plaintiff, v. Home Depot U.S.A., Inc., a foreign corporation, Defendant.

CV-00-0419-PHX-ROS.

United States District Court, D. Arizona

February 5, 2001.

Order

ROSLYN O. SILVER, District Judge.

Pending before the Court is a Motion to Dismiss filed by Defendant Home Depot U.S.A., Inc. ("Defendant") on July 14, 2000. Plaintiff Debra Lopez ("Plaintiff") filed a Response, and Defendant replied. For the reasons which follow, the Motion will be granted.

Background

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 8, 2000 against Defendant, her former employer. After receiving a right to sue letter from the EEOC, Plaintiff filed a Complaint on March 8, 2000 alleging violations of the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. Plaintiff filed an Amended Complaint on June 15, 2000. Count One of Plaintiff's Amended Complaint alleges that she was wrongfully terminated because of her race and gender. Plaintiff further alleges in Count One that Home Depot created a hostile work environment for Hispanics and females. Count Two alleges retaliatory discharge under Title VII, and Count III alleges intentional infliction of emotional distress. Home Depot filed a Motion to Dismiss Count One of the Amended Complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

Discussion

I. Standard of Review

Pursuant to Fed.R.Civ.P. 12(b)(1), a party may move to dismiss a claim for lack of subject matter jurisdiction. It is presumed that a federal court is without jurisdiction to hear a claim. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The burden of proving subject matter jurisdiction is on the party alleging subject matter jurisdiction. Id. A court ruling on a Rule 12(b)(1) motion may hear evidence and resolve disputed facts. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Pub. Co. v. GTE, 594 F.2d 730, 733 (9th Cir. 1979) (cite and quotes omitted); see also Corrothers, 812 F.2d at 1176; Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). Looking beyond the complaint to matters of public record and resolving disputed facts does not convert a Rule 12(b)(1) motion into a motion for summary judgment. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

II. Analysis

Defendant argues that the Court lacks subject matter jurisdiction over Count One because Plaintiff failed to exhaust all the allegations in this count with the EEOC. (Doc. #11). "To establish federal subject matter jurisdiction over an employment discrimination claim, a plaintiff must have raised that claim or a `like and reasonably related' claim in an administrative action." Yamaguchi v. U.S. Dep't of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997) (cite omitted); see also Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). "In determining whether an allegation under Title VII is like or reasonably related to allegations contained in a previous EEOC charge, the court inquires whether the original EEOC investigation would have encompassed the additional charges." Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989); see also Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) ("[T]he scope of the judicial complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.").¹

The substance of Plaintiff's EEOC Charge is construed liberally to determine whether claims not raised in her EEOC Charge satisfy the exhaustion requirement. See Sosa, 920 F.2d at 1458 ("EEOC charges must be construed with utmost liberality since they are made by those unschooled in the technicalities of formal pleading.") (cite and quotes omitted).² The factual statement included in the charge of discrimination is the "crucial element" when examining an EEOC charge for exhaustion. See Kaplan v. Int'l Alliance Of Theatrical & Stage Employees & Motion Picture Machine Operators Of The U.S. & Canada, 525 F.2d 1354, 1359 (9th Cir. 1975). "Furthermore, '[t]he substance of the administrative charge, rather than its label, is the concern of Title VII.'" Hogan v. Henderson, 102 F. Supp.2d 1180, 1184 (D.Ariz. 2000) (alteration in original) (quoting Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981)).

Count One of Plaintiff's Amended Complaint alleges that she was wrongfully terminated because of her gender and race and that Home Depot was a hostile environment for females and Hispanics. (Am.Comp. ¶ 11). The Court must determine whether the allegations contained in Count One, or whether "like and reasonably related" allegations, were presented to the EEOC.

In her EEOC Charge, Plaintiff selected retaliation as the cause of discrimination though she had the option of also selecting race, color, sex, religion, national origin, age, disability or other. (Doc. #18, Exh.1).³ In the body of her EEOC Charge, Plaintiff stated, "I feel I have been discriminated against in retaliation for standing up for myself." (Id.). Plaintiff also attached a five-page, single-spaced letter setting forth allegations against Home Depot. (Doc. #18, Exh.1). Plaintiff's allegations describe a conflict between herself, the store manager Greg Thompson ("Thompson"), and a co-employee, Jackie McConnell ("McConnell"). Plaintiff alleges that Thompson and McConnell had an inappropriate relationship and that they both treated the other employees poorly. (Id. at 1-3). She further alleges that she was prematurely terminated on April 23, 1999 by McConnell. (Id. at 3). Plaintiff did not set forth any reason why she was terminated.

The Court finds that it could not be reasonably expected that Plaintiff's claims of race or gender discrimination would grow out of her EEOC Charge. See Sanchez, 431 F.2d at 466. Plaintiff may not assert new theories of discrimination which she did not present to the EEOC. See Shah v. Mt. Zion Hospital and Medical Center, 642 F.2d 268, 271-72 (9th Cir. 1981) (upholding dismissal of Shah's claims of race, color and religious discrimination because his EEOC charge only alleged sex and national origin discrimination); see also Devereaux v. East Bay Conservation Corp., No. C 97-3065 SI, 1998 WL 917798, at *3 (N.D.Cal. Dec. 30, 1998) (dismissing claims of race and sex discrimination based on the same set of facts from which plaintiff only alleged age discrimination in the EEOC charge).⁴

In her Response, Plaintiff argues that race discrimination is "like and reasonably related" to her retaliation charge for two reasons: 1) McConnell and Thompson do not have Hispanic surnames, and 2) claims of racial discrimination have been made against Home Depot in other states. (Doc. #18 at 1, 3). Plaintiff's ethnicity, even in contrast to those she alleges retaliated against her, does not by itself make a discrimination claim "like and reasonably related" to her retaliation charge. See Castro v. United States, 775 F.2d 399, 403 n. 2 (1st Cir. 1985) ("Castro's argument that the MSPB or EEO Office should have known that Diaz Diaz was alleging discrimination on the basis of national origin by the fact that he is Puerto Rican and by the fact that he alleged discrimination on the basis of age is contrary to both logic and law."), overturned on other grounds, Stevens v. Dep't of the Treasury, 500 U.S. 1, 7 (1991); Ang v. Procter & Gamble Co., 932 F.2d 540, 546 (6th Cir. 1991) ("The scope of Ang's complaint does not automatically expand due to his membership in more than one minority group."). Additionally, claims of discrimination in other states with no connection to her claims do not make Plaintiff's race or gender discrimination claim "like and reasonably related" to her retaliation charge.

There are no facts or allegations in Plaintiff's EEOC Charge indicating that Plaintiff was discriminated against because she is female or Hispanic. See Shah, 642 F.2d at 271-72; see also Stallcop, 820 F.2d at 1051 (finding that the investigation would not encompass new claims of sex and age discrimination where no allegations of either claim were made in the charge). Construing Plaintiff's EEOC Charge liberally, there is no basis for finding that the EEOC investigation encompassed claims of race and gender discrimination. For this reason, Plaintiff also did not exhaust her claim of hostile work environment based upon race or gender discrimination.

The Court finds that the Motion to Dismiss should be granted. The hearing on the Motion to Dismiss will be vacated because both parties provided the Court with complete memoranda thoroughly discussing the law and evidence in support of their respective positions. Oral argument would not have aided the Court's decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (stating that no prejudice results from denial of a hearing when the parties have had adequate opportunity to provide the court with evidence and memoranda of law).

IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss (Doc. #11) is GRANTED. The Clerk of Court is directed to dismiss Count One in the Amended Complaint with prejudice.

IT IS FURTHER ORDERED that the hearing scheduled to occur on February 5, 2001, is VACATED.

1. Plaintiff argues that her claims "could have [been] proven following" an EEOC investigation. (Doc. #18 at 4). She further argues that she verbally raised her claims in Count One with the EEOC investigator. (Doc. #18, Exh. 2, 63). That Plaintiff could have proven her claim following an EEOC investigation does not exhaust the claim if it was never presented to the EEOC. See Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1051 (9th Cir. 1987). When a plaintiff does not...